4.Certain Definitions. For purposes of this Agreement:
(a) “Affiliate” means, with respect to any entity, another entity that either directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control with, such entity.
(b) “Control” means with regard to any entity, the legal or beneficial ownership, directly or indirectly, of fifty percent (50%) or more of the shares (or other ownership interest, if not a corporation) of such entity through voting rights or through the exercise of rights pursuant to agreement, or the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such entity.
(c) “Initial Public Offering” shall mean the closing of the first firm commitment underwritten public offering of the common stock of the Applicable Company Party registered under the Securities Act of 1933, as amended, pursuant to which such shares of common stock become publicly traded on the Nasdaq or New York Stock Exchange.
(d) “Share Price” means (i) with respect to any Trading Price Trigger Date, the average of the VWAP of a share of common stock of the Applicable Company Party for each trading day during the consecutive ninety (90) day period immediately preceding (but not including) such Trading Price Trigger Date, and (ii) with respect to any Company Sale Trigger Date, the price per share of Series A-1 Preferred Stock, and/or any securities received upon conversion thereof or in exchange therefor, implied by the Company Sale which occurs on such date.
(e) “Series A-1 Preferred Stock” means the Company’s shares of Series A-1 Preferred Stock, par value $0.0001 per share, and any securities received upon conversion thereof or in exchange therefor. After (i) a Merger or Equity Purchase in which some or all of the consideration is cash or (ii) an Asset Sale, each share of Series A-1 Preferred Stock shall be deemed to reflect a proportionate share of the ongoing value of the business of the Company acquired in the Merger or Asset Sale.
(f) “Trigger Date” is any one of the following dates that occur during the Win State Payment Period: (i) any date after the Applicable Company Party completes an Initial Public Offering (the “Trading Price Trigger Date”); (ii) the date on which the Applicable Company Party sells, leases, transfers or exclusively licenses all or substantially all of its assets or all of the assets related to the TomegaVax technology (an “Asset Sale”); (iii) the date on which the Applicable Company Party merges or consolidates with or into another entity (other than a merger in which the pre-merger stockholders of the Company own a majority of the shares of the surviving entity) (a “Merger”); and (iv) the date on which the holders of equity of the Applicable Company Party sell or transfer greater than eighty percent (80%) of the then outstanding equity of such Applicable Company Party (a “Stock Sale” and together with a Merger and an Asset Sale, a “Company Sale,” and each of the Trigger Dates triggered thereby, a “Company Sale Trigger Date”).
(g) “VWAP” means, with respect to any particular trading day, the daily volume-weighted average trading price per share of the common stock of the Applicable Company Party for such day on the principal trading market for such common stock, as reported by Bloomberg US L.P. (or successor thereto) using its “Volume at Price” functions (based on a trading day from 9:30 a.m. (New York City time) to 4:00:01 p.m. (New York City time)).
(h) “Win State Payment” means the positive difference, if any between (A) the amount set forth onSchedule B hereto opposite the Win State Payment Milestone with the greatest value achieved as of the Trigger Date, less (B) the sum of (x) all payments previously made to Company
